Conducting business openly

The state's public-records law needs change

The past month has seen two assaults on the free flow of information in Massachusetts. The first is an attempt by the Boston City Council to exempt its e-mail correspondence from the public-records law. The second is a sweeping proposal by Attorney General Tom Reilly to keep most of his office's work free from public scrutiny. If passed, these measures would seriously weaken the trust between elected officials and citizens.

In order for government to be effective, civil servants and elected officials must conduct their business openly. This basic concept was established in the Commonwealth as far back as Colonial times. The state has had an office for the Commissioner of Public Records for more than a century. And in 1973, the state legislature firmly established these policies of openness with liberal public-records legislation, dubbed the "sunshine" law. That law ensures that any citizen of the Commonwealth can gain access to the records created by public officials in the normal course of business.

There is no reason why e-mail between Boston city councilors and their constituents should be shielded from this law. Councilors say they are trying to protect the privacy of their constituents, but those protests ring hollow. How much privacy, after all, can someone expect in sending off a message that is sure to be opened and screened by administrative assistants? Councilor Stephen Murphy, who is leading the council's effort to keep the e-mail private, admits that he doesn't open his own e-mail. In the meantime, the state already makes public other electronic records of a far more intimate nature: 911 calls. Secretary of State Bill Galvin, who oversees the state's public records and is responsible for interpreting the state's "sunshine" law, is blunt about how e-mail should be handled: "If it's within the public domain, it's within the public domain. If it's being used as part of their official responsibilities, it's part of their official papers."

Jack Authelet, until recently the Project Sunshine chairman for the Massachusetts Society of Professional Journalists, points out that correspondence pertaining to medical records, marital status, government assistance, family disputes, paternity, substance abuse, or reputation is already shielded from the law. "The more-intimate personal data that [the councilors] have made the cause célèbre here has, from day one, been protected," he says. "If they had just stepped back long enough to look at the law, they would have realized they had nothing to fear."

Murphy does make an excellent point, though, in his criticisms of the state's sunshine law: members of the state legislature are exempt. That means if a Boston resident e-mails a state rep and copies the message to a city councilor, as often happens, the version sent to the state rep is not accessible to the public, but the version sent to the city councilor is. That should change. All correspondence sent to state senators and representatives should be made open if it pertains to the public's business.

Attorney General Reilly's attempt to make the work of his office inaccessible is somewhat more complicated, but the manner in which he went about it -- by inserting a rider into the state budget -- was a shameless effort to shield his proposed changes from public debate. The irony is that his office does need a special exemption from the state's sunshine law in light of a recent decision by the Massachusetts Supreme Judicial Court. That case saw General Electric win the right to view documents created by the Attorney General's Office in preparation of a lawsuit against GE. In the past, the Attorney General's Office has been able to win attorney-client privilege from the courts on a case-by-case basis. In the SJC's decision in the GE case, however, the court said that documents created under attorney-client privilege can be made public if the attorney is a civil servant. It advised the legislature to revisit the issue.

Since that decision, the US Environmental Protection Agency has refused to release to the Attorney General's Office documents pertaining to an ongoing natural-resources damages case. The fear is that information collected by the agency could then be released to opposing litigants. The legislature should enact a narrowly written exemption to the sunshine law giving attorney-client privilege to state and municipal attorneys who are in the business of litigating for the public trust. But such a measure must stipulate that these protected documents be made public after cases are settled. As Galvin notes, this time-limit provision would allow the public to evaluate the job done by government attorneys.

This state's public-records law is one of the most liberal in the country. It should be made more so by forcing state legislators to abide by the same rules other public servants must observe. And it should be made fairer by giving state and municipal attorneys the flexibility needed to get their jobs done. Both changes would serve the public: government works best when its business is conducted publicly and openly.

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